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Wed December 22, 2010
Mayor found to owe city nearly $50,000
By Scott Harvey
Commerce – Commerce Mayor Quay Throgmorton has been directed to pay the City nearly $50,000 related to the development costs of the 2005 Rosemound Estates project. City Attorney Jim McLeroy presented findings of an investigation Tuesday, after being requested by Council in November to look into the matter.
In a letter to Council, McLeroy notes that based on records related to an Agreement to Reimburse dated June 21, 2005, the Mayor is indebted to the City $82,938.38, $33,622 of which was paid on March 23, 2006, bringing the total to $49,316.38 owed.
"I sat down with the Mayor on December 9 and presented him with a demand letter for that amount, based on the resolution you [Council] gave me last time [November 16 meeting]," McLeroy said. "He and I agreed to disagree on that. He [Throgmorton] told me he didn't think he owed that money. But be that as it may, that's what I believe the contract calls for."
McLeroy's investigation finds clear gaps in contract details since the project was first presented and subsequently voted in favor of. The initial agreement between the developers, Quay and Paige Throgmorton, called for the City to assist the two with $56.6 percent of the development costs of "Rosemound Sanitary Sewer Extension." Upon completion, the portion paid by the City was to be fully repaid by the Throgmortons.
"Initially, I think the discussion and I think the record will reflect that the discussion that was had was that the City would pay for it and that the deferred part of that would be repaid as the lot sold. That's not what got put in the final contract," McLeroy said. "What got put in the final contract was the City would be paid in full when the project ended."
Per a phone conversation with Throgmorton last month, McLeroy says the Mayor did acknowledge he owed the additional sums under the agreement to reimburse, but that it was his belief payment was not due until the lots actually sold. That belief by the Mayor was per a memo from then Assistant City Manager Mike Dunn, dated January 2005. However, according to testimony from Dunn to McLeroy, that agreement was rejected by the City, thus changing the agreement so that the full reimbursement was due after the improvements were complete.
The investigation by McLeroy finds the Mayor may also owe an additional $7,611.22 for tree removal and re-grading to the Rosemound property, which occurred before the Agreement to Reimburse was finalized. In November 2004, Mike Dunn authorized Tracey Lunceford and his crew to undertake such work on the Rosemound property, due to what Dunn referred to as increasing pressure from then Councilman Throgmorton.
McLeroy says the Council has no authority to authorize the use of city equipment on private property. The question was then asked Tuesday who gave Dunn the authority to pursue the tree removal and re-grading, as no documentation concerning the matter was found.
Councilman Douglas Rohrbaugh appeared puzzled Tuesday as to how Throgmorton had never been billed for the project by the City in the nearly five years since its completion. The question was then raised as to whose responsibility it would have been to bill the Throgmortons. City Secretary Marty Cunningham said it depended on the type of agreement. City Attorney McLeroy then noted there's been large turnover in a number of positions since the agreement, which could be the reason no bill(s) were ever issued.
With Throgmorton recusing himself from discussion or vote, Council voted 3-1, authorizing McLeroy to seek payment from the Mayor in the amount of $49,316.38. Councilman Rohrbaugh voted against the measure, indicating that while he agrees the Mayor owes money and it needs to be collected, there are too many questions remaining to make a favorable motion.
Throgmorton has until January 9 to repay the funds, or a lawsuit could be brought against him.
Throgmorton, in an email sent Tuesday night, said he does not agree with Mr. McLeroy's legal opinion on the matter, and that McLeroy reached his opinion without interviewing him. The Mayor plans to make an open records request of all documents in the City's possession on the subject, and his legal counsel will then compare them to the ones in his possession, in addition to ones obtained this past week, before moving forward.
"I have believed, since I made the payment to the City in 2006 and still do, that I have paid all sums due to the City," said Throgmorton.